Saturday, February 24, 2007

I've had an idea in my head lately- that I should write about those cases where, in my opinion, the Court screwed up. Not merely where I disagree, mind you, but where the Supreme Court just flat screwed the pooch- not only was the result wrong, but the reasoning was wrong as well. A truly bad decision will will apply bad law to achieve a bad result.

The cases in the anti-canon have a few things in common. These cases are more likely to involve claims that can be resolved narrowly, but the Court uses it as an opportunity to make a broad pronouncement; truly bad cases concern substantive rights as opposed to procedural law; the worst decisions usually have dissents that people can remember for years, long after the holding is forgotten. Finally, the bad decisions usually have major political ramifications that play out for decades. So let us begin with the worst decision in the history of the Court, the grandaddy of 'em all...

The precise question before the Court was strictly jurisdictional- is a slave of African descent a citizen of the United States, with the right to sue in Federal court? The Court ruled that slaves- in fact, that all persons of African descent, free or slave- were not citizens, and therefore the Court had no jurisdiction. Chief Justice Taney, a southerner and slaveowner, wrote (in some of the most repugnant racism you will ever see)-

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Since Africans had no rights that "the white man was bound to recognize," Dred Scott had no right to sue. End of story, right?

Wrong.

Even after deciding that the Court lacked jurisdiction, Taney went on consider the merits of the case. This is where the case transcends from a merely mistaken decision, to a truly horrendous one. The Court opined that slavery was embedded in the Constitution, in clauses like the importation clause or the three-fifths clause, suggesting that slavery was a base assumption made by all the Framers, and in that regard, Taney was probably right. However, based on that the Court decided that the Missouri Compromise, an act of Congress that prohibited slavery in northern territories, was unconstitutional. This extra step was purely political, designed to encourage slaveholder emigration to all the territories. When the territory was deemed eligible for admission as a state, it would be admitted as a slave state. Thus the Court tried to jury rig a slave state majority, so to end the slavery issue once and for all. Instead, it probably helped to steer the ship of state toward the Civil War. It took three constitutional amendments to undo the damage, not to mention a quarter-million dead.

It is perhaps easy to forget this today, because the case is so universally reviled for its dripping racism, judicial overreach, and it's subsequent total repudiation, but this was actually a very carefully considered decision. The Supreme Court heard argument on it twice before deciding and there were a plethora of opinions submitted, including two dissents. Maybe this goes to show that bad decisions are only so obviously wrong in hindsight; maybe it shows that the Court had to work very hard to achieve the particular result it wanted.

What is truly interesting about this case is the way it resonates in the major controversies of our own time. It has been called worst examples of both originalism ( "Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of 'originalist' interpretation or 'strict construction.'") and judicial activism (Justice Scalia dissenting in Casey, suggesting that Dred Scott is the birth of substantive due process). Its shadow is long, its shamefulness deep and abiding.